On 10 September 2007, a book entitled Paix et Châtiment, authored for publication by Florence Hartmann, was published by Flammarion. Pages 120-122 of the book Paix et Châtiment in particular disclose information related to the decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions, as well as specific reference to the confidential nature of these decisions.

On 21 January 2008, an article authored for publication by Florence Hartmann entitled “Vital Genocide Documents Concealed” was published by the Bosnian Institute. The article discloses information relating to the two confidential decisions of the Appeals Chamber dated 20 September 2005 and 6 April 2006, including the contents and purported effect of these decisions.

Florence Hartmann knew that the information was confidential at the time disclosure was made, that the decisions from which the information was drawn were ordered to be filed confidentially, and that by her disclosure she was revealing confidential information to the public.

Some scholars question whether the Tribunal has the power to punish contempt, which is provided for by the ICTY’s Rules of Procedure (Rule 77), but is not mentioned in the ICTY Statute. I don’t have a problem with the contempt power itself: the “courtness” of courts, it seems to me (and forgive the butchering of Heidegger), includes the power to punish contempt. That said, I think this particular use of the contempt power is an exceptionally bad idea. As numerous human-rights groups and NGOs in the former Yugoslavia have pointed out, the information Hartmann disclosed was already in the public domain:

On November 3, the Belgrade-based Humanitarian Law Centre, of which Hartmann is a member of the executive board, issued a press release signed by 34 non-governmental organisations from the former Yugoslavia in which they condemn the tribunal’s decision to indict the former tribunal spokesperson.

The statement noted that the content of the confidential decisions was “the subject of many press reports and public debates after the International Court of Justice delivered its judgment in February 2007 in the case of Bosnia and Herzegovina versus Serbia on charges of genocide, and it is not clear why Ms. F. Hartmann has been singled out by the Hague judges”.

As the Belgrade group notes, human rights organisations throughout the region openly criticised the decision of tribunal judges to accept the request submitted by Serbia to conceal parts of the SDC minutes. They alleged that Belgrade wanted the documents kept confidential to prevent them from being used in the parallel case before the ICJ in which Bosnia as a state accused Serbia of genocide. Although the ICJ ultimately found Serbia was not directly responsible for genocide, it found it guilty of failing to prevent the genocide in Srebrenica and punish the perpetrators.

There is no question that Hartmann knowingly violated Tribunal rules. But that doesn’t mean she should be criminally prosecuted. Indeed, given that her disclosures seemingly revealed nothing new, her prosecution only makes the Tribunal seem petty and vindictive, more interested in silencing an insider critic than doing justice.

Just last week, the President of the ICTY, Patrick Robinson, told the Security Council that the Tribunal would not complete its first-instance trials until 2012 at the earliest — four years behind schedule. Given the Tribunal’s workload, prosecuting Hartmann hardly seems worth the time and effort.

2 Responses

Article 287 of the EC Treaty states: “The members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information o fthe kind covered by the obligation of professional secrecy, (…).” And still, when I was there, they made me sign an additional paper saying the same thing.

I’m sure the ICTY works the same way. People who work there are supposed to keep their mouths shut about things they know that are confidential. It doesn’t matter whether certain information is already in the public sphere – that only matters for the appropriate penalty. As long as the information has not been unsealed, the obligation of confidentiality remains. The merits of the original decision to keep certain documents confidential are beside the point.

That said, if she gets more than a slap on the wrist, it would be a disgrace.

6.15.2009
at 9:46 am EST Martin Holterman

I have mixed feelings. Obviously, it doesn’t seem like the most pressing issue in international criminal justice today, even in the specific sphere of the ICTY.

But if the ICTY (and by extension the ICC, since only about 3500 people in the entire world would distinguish the two!) does not take itself seriously and do its utmost to uphold, most of all, its confidentiality, then it runs a real risk imho of discrediting itself and lending weight to those who would argue that it (they) is(are) really a(-) political court(s) aimed at “victor’s justice” or “western imperialist justice”.

So I guess I agree with Martin Holterman.

6.15.2009
at 5:04 pm EST Patrick

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